Biju vs State of Kerala

K. Ramakrishnan, J.—Accused in S.C. No. 1138/2002 on the file of the 3rd Additional Sessions Court, Kollam, is the appellant herein.

The appellant was charge-sheeted by the Sub Inspector of Police, Karunagappally police station in Crime No. 633/1999 of Karunagappally police station under Section 55(a) and (i) of the Abkari Act (it was wrongly shown as 55(a) of Abkari Act and it must be under Section 8(1) read with Section 8(2) of Abkari Act, as the article seized was arrack and the word arrack has been deleted from Section 55(a) and (i) of Abkari Act).

The case of the prosecution in nut shell was that, on 02.11.1999 at about 12.30 p.m., the accused was found to be in possession of 1.250 liters of arrack in a plastic bottle having a capacity of 11/2 liters, near his residential compound at Mangalathu Padinjattathil, Kalleli bhagam Muri in Thodiyoor Village and engaged in sale of the same and thereby he had committed the above said offence.

After investigation, final report was filed before the Judicial First Class Magistrate Court, Karunagappally, where it was taken on file as C.P. No. 131/2001 and the learned magistrate has committed the case to the Sessions Court, Kollam, as per order in C.P. No. 131/2001 and the learned Sessions Judge has taken cognisance of the case as S.C. No. 1138/2002 and made over the same to 3rd Additional Sessions Judge, Kollam, for disposal.

When the appellant appeared before the court below, the learned Additional Sessions Judge, after hearing the Additional Public Prosecutor and the learned counsel appearing for the appellant, framed charge under Section 55(a) and (i) of Abkari Act, against the accused and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 4 were examined and Exts. P1 to P3 and Mos 1 to 4 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and no article was seized from his possession and he was falsely implicated in the case. Since the evidence in the case did not warrant acquittal under Section 232 of the Code of Criminal Procedure, the learned Additional Sessions Judge directed him to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found that the appellant was guilty under Section 55(a) of Abkari Act and acquitted him of that charge under Section 235(1) of the Code of Criminal Procedure. But the learned Additional Sessions Judge found the appellant guilty under Section 55(a) of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of 1,00,000/-, in default to undergo rigorous imprisonment for ten months more. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

Heard the learned counsel for the appellant and leaned Public Prosecutor.

The learned counsel for the appellant submitted that, independent witnesses to the seizure have turned hostile. Further the evidence of PWs 3 and 4 is not believable regarding the seizure. So the seizure has not been properly proved. Further the investigating officer has not been examined in this case and that has caused prejudice to the accused. Further there was inordinate delay in producing the article. The article was seized on 02.11.1999, but produced before the court only on 22.12.1999, after one and half months of the alleged seizure. There is no spot sample taken as well. So under the circumstances, in the absence of taking spot sample and in the absence of evidence adduced on the side of the prosecution regarding the delay in producing the article, it cannot be said that, the prosecution has proved beyond reasonable doubt, that the articles seized were the same article produced before the court and the chemical analysis report relates to the same article, so as to convict the accused for the offence alleged. This aspect has not considered by the court below in the right perspective and the conviction entered by the court below is unsustainable in law and the appellant is entitled to get acquittal.

On the other hand, the learned Public Prosecutor argued that, since the investigating officer was suffering from tuberculosis and undergoing treatment, he could not be examined and non-examination of the investigating officer had not caused any prejudice to the accused as well. Further the delay in producing the article has been explained by PW4, the detecting officer and the court below was perfectly justified in convicting the appellant for the offence alleged and no interference is called for.

The points that arise for consideration are:

I. Whether the court below was justified in convicting the appellant under Section 55(a) of the Abkari Act?

II. If so, the sentence imposed is proper and legal?

Point No. I: The case of the prosecution as emerged from the prosecution witnesses was that, on 02.11.1999 at about 12.30 p.m., PW4 the Sub Inspector of police attached to Karunagappally police station was doing law and order duty along with PW3 and CW5 and when they reached near the Kalleli bhagam railway cross, he got information that the accused was selling arrack from his residential compound and so they went to the spot and found the accused holding MO3 plastic bottle and MO4 glass in his hand and on seeing the police party, he tried to go away from that place. So they stopped him and examined the contents of MO3 bottle and they were satisfied that it was arrack. So they have conducted body search of the accused and found that he was in possession of MO1 and MO2 series currency notes worth 105/- and they have sealed MO3 bottle and seized MO3 and MO4 glass and MO1 and MO2 series currency notes, after describing the same in Ext. P1 mahazar in the presence of PWs 1 and 2. He arrested the accused and came to the police station and registered Ext. P2 first information report as Crime No. 633/1999 of Karunagappally police station against the accused under Section 55(a) and (i) of Abkari Act. He had prepared the property list and produced the articles before the court. As per the request of the investigating officer, the sample was sent for chemical analysis and Ext. P3 analysis report obtained, which shows that, it contained ethyl alcohol. The investigation in this case was conducted by CW6, the Additional Sub Inspector of police, he completed the investigation and submitted final report.

PWs1 and 2 are the attestors to Ext. P1 seizure mahazar and also seizure witnesses. PW1 had even denied not only witnessing the seizure but also his signature in Ext. P1, but he had admitted that he knew the accused. PW2 though admitted his signature in Ext. P1, denied having seen the seizure. So their evidence is not helpful to prove the seizure as such. So the court has relied on the official witnesses alone to this fact. PW4 had deposed that, on 02.11.1999 at about 12.30 p.m., when he along with patrol party reached near the railway cross at Kalleli bhagam, he got information that the accused was engaged in the sale of arrack and so he went there along with PW3 and CW5 and saw the accused holding MO3 bottle and MO4 glass in his hand and on seeing the police, he tried to go away from that place. So he stopped him and examined the contents in MO3 bottle, which is having a capacity of one and half liters containing 1.250 liters of liquor. On examination of the contents, he was satisfied that, it was arrack. He arrested the accused. He sealed the bottle and glass and he conducted body examination of the accused and found MO1 and MO2 series currency notes worth 105/- and he had seized the currency notes as well as MO3 and MO4 as per Ext. P1 mahazar and thereafter he came to police station along with the accused and the contraband articles seized and registered the crime. This aspect was corroborated by PW3 as well. Though they were cross examined at length, nothing was brought out to disbelieve their evidence regarding this aspect.

It is settled law that, merely because the witness to the seizure mahazar had turned hostile is not a ground to disbelieve the prosecution case and it is not a ground to acquit the accused as well. If the court is convinced regarding the evidence rendered by the official witness of the seizure and arrest of the accused with the contraband article, there is nothing wrong in relying on their evidence to convict the accused. In this case, nothing was brought out to discredit the evidence of PWs 3 and 4 on this aspect. No other evidence was adduced on the side of the accused to prove that he has been falsely implicated in the case as well, except stating so in his 313 cross examination and giving suggestions to PWs 3 and 4, which were denied by them. So under the circumstances, court below was perfectly justified in coming to the conclusion that, the accused was arrested along with a bottle containing some liquor and a glass and some currency.

But that alone is not sufficient to come to the conclusion that, the prosecution has proved beyond reasonable doubt and the accused was found to be in possession of arrack, so as to convict him for the offence alleged. In order to prove that fact, they must prove that, the contents of the bottle was arrack and in order to prove the same, they must take sample from the bottle and produce the articles before the court without delay and the sample must be sent for analysis and report must be obtained. Unless it is satisfactorily proved by the prosecution that, the articles seized were the same articles produced before the court and the chemical analysis report relates to the representative sample taken from such liquor, it cannot be said that, the prosecution has proved beyond reasonable doubt that, the accused was found to be in possession of arrack.

In this case, there was no spot sampling done. No evidence has been adduced on the side of the prosecution as to from where and also what time the sample was taken as well. Further, though the article was seized on 02.11.1999, it was seen produced only on 22.12.1999. Though PW4 had a case that, it was produced on the same day and it was returned to him for safe custody, there was nothing mentioned in the property list or any endorsement were made to that effect. Further in the remand report, it was not mentioned that, it was produced along with the accused before the magistrate. That also shows that, it was not produced before the court as claimed by the detecting officer, namely PW4. There was no explanation forthcoming from the side of prosecution regarding the delay in producing the article as well. If the delay is not explained, then it cannot be said that, the articles seized were the same articles produced in court with tamper proof and the chemical analysis report relates to that article, so as to come to the conclusion that, the prosecution has proved beyond reasonable doubt that the accused had committed the offence punishable under the Act. This was so held in the decisions reported in Jayakumar @ Kolusu Jayan v. State of Kerala (2007(4) KHC 236) ; Ramankutty Vs. The Excise Inspector, ; Surendran Vs. Excise Inspector, ; Narayani Vs. Excise Inspector and Alex v. State (2003 (1) KLT (S.N. 9)(Case No. 12).

Further the Division Bench of this court in Ravi Vs. State of Kerala , this court has held that, no conviction can be entered against the accused in the prosecution as the present one, unless it is proved that, the sample which was analysed in the chemical examiners laboratory, is the same sample drawn from the contraband liquor allegedly found in the possession of the accused.

Further in the decision reported in Sasidharan K.K. and Others Vs. State of Kerala and Another, , it has been held that, the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the chemical examiner with the specimen seal sent separately for tamper proof despatch has to be established by the prosecution. The prosecution had a duty to prove that, it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the chemical examiner in a tamper proof condition. In the same decision, it has been observed that, contemporary proceedings evidencing drawing of sample and sending the same to chemical examiner in a tamper proof condition are recorded in a proceedings before court. Sessions Judge trying such cases also should ensure that the concerned member of the staff who has drawn the sample and despatched the same to the chemical examiner''s lab duly packed and sealed under the covering letter of the magistrate is examined before court during trial. The learned Public Prosecutor in charge of the case also had duty to file an additional witness list for examining the thondy section clerk (property clerk) concerned, so as to establish the nexus between the contraband articles and the accused. In the absence of such evidence, the court found that the conviction entered by the court below is not sustainable and given the benefit and acquitted the accused.

The dictum laid down in the above decisions are applicable to the facts of the case as well. In this case also no spot sampling was done. No evidence adduced to prove from where the sample was taken and whether Ext. P3 report relates to the same sample, which was alleged to have been taken from the articles alleged to have been seized from the possession of the accused as required in the decisions mentioned above. In such circumstances, the court below was not justified in coming to the conclusion that prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack and convicting the appellant for the offence under Section 55(a) of the Abkari Act, and the same is liable to be set aside and the appellant is entitled to get acquittal of the charge levelled against him giving the benefit of doubt. So the order of conviction passed by the court below against the appellant under Section 55(a) of Abkari Act is set aside and the appellant is acquitted of the charge levelled against him. The point is answered accordingly.

Point No. II: In view of the finding on Point No. I that, the appellant is entitled to get acquittal, the sentence imposed by the court below is also unsustainable in law and the same is also set aside. The point is answered accordingly.

In the result, the appeal is allowed and the order of conviction and sentence passed by the court below against the appellant under Section 55(a) of the Abkari Act are hereby set aside and the appellant is acquitted of the charge levelled against him, giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. If the appellant has deposited any amount towards fine imposed, then the lower court is directed to refund the same to him on making an application for that purpose.

Office is directed to communicate this judgment to the court below at the earliest.